[1] 见：https://www.bis.gov/press-release/commerce-announces-proposed-rule-secure-connected-vehicle-supply-chains-foreign。
[2] 见：https://www.federalregister.gov/documents/2024/09/26/2024-21903/securing-the-information-and-communications-technology-and-services-supply-chain-connected-vehicles#。
[3] 见：https://www.bis.doc.gov/index.php/documents/about-bis/newsroom/press-releases/3457-2024-02-29-2024-fr-2024-04382-4251333-ppiv/file；以及本所解读文章《汉坤 • 观点 | 网联汽车通信技术和服务企业在美面临合规新挑战》，载微信公众号“汉坤律师事务所”，2024年3月1日。
[4] Securing the Information and Communications Technology and Services Supply Chain: Connected Vehicles, 89 Fed. Reg. 79,117 (Sept. 26, 2024).
[5] “VCS hardware importers are prohibited from knowingly importing VCS hardware that is designed, developed, manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of the PRC or Russia.” See supra note 4.
[6] “In the context of this subpart, VCS hardware will not be considered to be designed, developed, manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of the PRC or Russia, solely based on the country of citizenship of natural persons who are employed, contracted, or otherwise similarly engaged to participate in the design, development, manufacture, or supply of the VCS hardware.” See supra note 4.
[7] See supra note 4.
[8] “Connected vehicle manufacturers are prohibited from knowingly importing into the United States completed connected vehicles that incorporate covered software, designed, developed, manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of the PRC or Russia.” See supra note 4.
[9] “Connected vehicle manufacturers are prohibited from knowingly selling in the United States completed connected vehicles that incorporate covered software, designed, developed, manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of the PRC or Russia.” See supra note 4.
[10] “In the context of this subpart, covered software will not be considered to be designed, developed, manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of the PRC or Russia, solely based on the country of citizenship of natural persons who are employed, contracted, or otherwise similarly engaged to participate in the design, development, manufacture, or supply of the Covered Software.” See supra note 4.
[11] See supra note 4.
[12] “Connected vehicle manufacturers who are persons owned by, controlled by, or subject to the jurisdiction or direction of the PRC or Russia, are prohibited from knowingly selling in the United States completed connected vehicles that incorporate VCS hardware or covered software.” See supra note 4.
[13] “Connected vehicle [sic] means vehicle driven or drawn by mechanical power and manufactured primarily for use on public streets, roads, and highways, that integrates onboard networked hardware with automotive software systems to communicate via dedicated short-range communication, cellular telecommunications connectivity, satellite communication, or other wireless spectrum connectivity with any other network or device. Vehicles operated only on a rail line are not included in this definition.” See supra note 4, at 79,116.
[14] “This definition captures the vehicles that would be subject to the rule (e.g., passenger vehicles, motorcycles, buses, small and medium trucks, class 8 commercial trucks, recreational vehicles) …BIS further believes that the term…will capture future trends in vehicle development, particularly as software comes to play a larger role in vehicle operation…BIS declined to extend this definition to all ‘rolling stock’ or unmanned aerial vehicles…” See supra note 4, at 79,091.
[15] “Completed connected vehicle [sic] means a connected vehicle that requires no further manufacturing operations to perform its intended function. For the purposes of this subpart, the integration of an Automated Driving System into a connected vehicle constitutes a manufacturing operation for a completed connected vehicle.” See supra note 4, at 79,116.
[16] “BIS intends this caveat to clarify that a person owned by, controlled by, or subject to the jurisdiction or direction of the PRC or Russia, whose sole manufacturing or assembly operation is integrating ADS into an otherwise Completed Connected Vehicle [sic], would be subject to the prohibitions in the rule and would need to obtain a Specific Authorization [sic] before importing or Selling [sic] that completed connected vehicle [sic] in the United States.” See supra note 4, at 79,102.
[17] “Automated Driving System [sic] means hardware and software that, collectively, are capable of performing the entire dynamic driving task for a completed connected vehicle on a sustained basis, regardless of whether it is limited to a specific operational design domain (ODD).” See supra note 4, at 79,116.
[18] “…Specifically, this definition corresponds to automation levels 3, 4, and 5 as defined by SAE International standard J3016.” See supra note 4, at 79,102.
[19] “Connected vehicle manufacturer [sic] means a U.S. person (1) [m]anufacturing or assembling completed connected vehicles in the United States; and/or (2) [i]mporting completed connected vehicles for sale in the United States.” See supra note 4, at 79,116.
[20] “A U.S. person imports a completed connected vehicle, making the U.S. person a connected vehicle manufacturer under the proposed rule’s definition.” See supra note 4, at 79,107.
[21] “组件”是指在车辆层面具有特定功能的一个或一组组件。如果一个系统能实现某种功能，也可将其视为一个组件。(“a component or set of components with a specific function at the vehicle level. A system may also be considered an item if it implements a function.” See supra note 4, at 79,116.)
[22] “Covered software [sic] means the software-based components, in which there is a foreign interest, executed by the primary processing unit of the respective systems that are part of an item that supports the function of Vehicle Connectivity Systems or Automated Driving Systems at the vehicle level. Covered software does not include firmware, which is characterized as software specifically programmed for a hardware device with a primary purpose of controlling, configuring, and communicating with that hardware device. Covered software also does not include open-source software that can be freely used, modified, and distributed by anyone, with both access to the source code and the ability to contribute to the software’s development and improvement unless that open-source software has been modified for proprietary purposes and not redistributed or shared.” See supra note 4, at 79,116.
[23] “…At minimum, this definition of covered software would include operating system (RTOS), and general-purpose operating systems.” See supra note 4, at 79,102.
[24] “Foreign interest [sic], for the purpose of this subpart, means any interest in property of any nature whatsoever, whether direct or indirect, by a non-U.S. person.” See supra note 4, at 79,116.
[25] “Under this definition, a foreign interest can include, but is not limited to, an interest through ownership, intellectual property, contract—e.g., ongoing supply commitments such as maintenance, any license agreement related to the use of intellectual property—profit-sharing or fee arrangement, as well as any other cognizable interest.” See supra note 4, at 79,103.
[26] “ADS and VCS software is frequently designed, developed, or supplied by foreign persons, and those persons frequently retain a legally cognizable interest in the underlying software, even after it has been integrated into the connected vehicle. For example, foreign software developers may earn profits from use of their software; retain data access and sharing rights to the software; or have obligations to maintain and update the software.” See supra note 4, at 79,103.
[27] “Import [sic] means, in the context of this subpart, with respect to any article, the entry of such article into the United States Customs Territory. It does not include admission of an article from outside the United States into a foreign- trade zone for storage pending further assembly in the foreign-trade zone or shipment to a foreign country.” See supra note 4, at 79,116.
[28] “Any merchandise that is not prohibited from entry into the territory of the U.S. may be admitted to a zone.” See https://www.trade.gov/about-ftzs?anchor=content-node-t14-field-lp-region-1-11. “Any foreign or domestic merchandise not prohibited by law or other exception listed below, whether dutiable or not, may be taken into a foreign-trade zone. Merchandise, which lawfully cannot be imported into the United States, is prohibited without exception. Furthermore, placing merchandise subject to a quota into a zone cannot circumvent quota on the imported merchandise.” See https://www.cbp.gov/border-security/ports-entry/cargo-security/cargo-control/foreign-trade-zones/about.
[29] See 15 C.F.R. § 734.3.
[30] “Knowingly [sic] means having knowledge of a circumstance (the term may be a variant, such as ‘know’, ‘reason to know,’ or ‘reason to believe’), to include not only positive knowledge that the circumstance exits or is substantially certain to occur, but also an awareness of a high probability of its existence or future occurrence. Such awareness is inferred from evidence of the conscious disregard of facts known to a person and is also inferred from a person’s willful avoidance of facts.” See supra note 4, at 79,116.
[31] “Model year [sic] means the year used to designate a discrete vehicle model, irrespective of the calendar year in which the vehicle was actually produced, provided that the production period does not exceed 24 months.” See supra note 4, at 79,116.
[32] “Sale [sic] means, in the context of this subpart, distributing for purchase, lease, or other commercial operations a new completed connected vehicle for a price, to include the transfer of completed connected vehicles from a connected vehicle manufacturer to a dealer or distributor, as those terms are defined in 49 U.S.C. 30102. This definition also applies to the related terms such as Sell or Selling [sic].” See supra note 4, at 79,117.
[33] “This would include direct-to-consumer sales of completed connected vehicles from the connected vehicles manufacturer to the ultimate purchaser.” See supra note 4, at 79,104.
[34] “Vehicle Connectivity System (VCS) [sic] means a hardware or software item for a completed connected vehicle that has the function of enabling the transmission, receipt, conversion, or processing of radio frequency communications at a frequency over 450 megahertz.” See supra note 4, at 79,117.
[35] “This definition would exempt most remote keyless entry fobs and immobilizers and certain internal wireless sensors and relays. VCS software is included in the definition of Covered Software [sic].” See supra note 4, at 79,104; “…[L]owering compliance burden by excluding from regulation those ICTS with functions that pose a lower risk and offer high utility to consumers (e.g., tire pressure monitoring systems, electronic key fobs).” See supra note 4, at 79,092.
[36] “[T]he proposed rule does not cover ICTS with the function of enabling the transmission, receipt, conversion, or processing of radio frequency communications at a frequency below 450 megahertz.” See supra note 4, at 79,092.
[37] “BIS ultimately chose to exclude other systems highlighted in the ANPRM—such as OS, ADAS, or BMS—from this proposed rule unless they have VCS components and fall within the proposed rule’s definition of VCS hardware.” See supra note 4, at 79,092.
[38] “BIS’s further technical analysis found that LiDAR generally lacks the ability to transmit from the vehicle and does not, as a standalone system, control the vehicle. Importantly, BIS notes that in many cases, ADS exerts control over both LiDAR and the vehicle and thus presents a higher risk.” See supra note 4, at 79,092.
[39] “VCS hardware [sic] means the following software-enabled or programmable components and subcomponents that support the function of Vehicle Connectivity Systems or are part of an item that supports the function of Vehicle Connectivity Systems: microcontroller, microcomputers or modules, systems on a chip, networking or telematics units, cellular modem/ modules, Wi-Fi microcontrollers or modules, Bluetooth microcontrollers or modules, satellite navigation systems, satellite communication systems, other wireless communication microcontrollers or modules, and external antennas. VCS hardware does not include component parts that do not contribute to the communication function of VCS hardware (e.g., brackets, fasteners, plastics, and passive electronics).” See supra note 4, at 79,117.
[40] “VCS hardware would include aftermarket devices not contained in a completed connected vehicle at sale but that could be later integrated into or attached to the vehicle to perform VCS functions.” See supra note 4, at 79,105.
[41] “[A]ftermarket telematics devices, including fleet tracking devices and systems, that fulfill functions consistent with the definition of VCS hardware are covered by this proposed rule.” See supra note 4, at 79,092.
[42] “VCS hardware importer [sic] means a U.S. person importing VCS hardware for further manufacturing, integration, resale, or distribution. A connected vehicle manufacturer may be a VCS hardware importer if VCS hardware has already been installed in a connected vehicle when imported by the connected vehicle manufacturer.” See supra note 4, at 79,117.
[43] “This definition would capture OEMs, and tier 1 and tier 2 suppliers importing VCS hardware into the United States.” See supra note 4, at 79,104.
[44] “Person owned by, controlled by, or subject to the jurisdiction or direction of a foreign adversary [sic] means:
(1) Any person, wherever located, who acts as an agent, representative, or employee, or any person who acts in any other capacity at the order, request, or under the direction or control, of a foreign adversary or of a person whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in majority part by a foreign adversary;
(2) Any person, wherever located, who is a citizen or resident of a foreign adversary or a country controlled by a foreign adversary, and is not a United States citizen or permanent resident of the United States;
(3) Any corporation, partnership, association, or other organization with a principal place of business in, headquartered in, incorporated in, or otherwise organized under the laws of a foreign adversary or a country controlled by a foreign adversary; or
(4) Any corporation, partnership, association, or other organization, wherever organized or doing business, that is owned or controlled by a foreign adversary, to include circumstances in which any person identified in paragraphs (a) through (c) possesses the power, direct or indirect, whether or not exercised, through the ownership of a majority or a dominant minority of the total outstanding voting interest in an entity, board representation, proxy voting, a special share, contractual arrangements, formal or informal arrangements to act in concert, or other means, to determine, direct, or decide important matters affecting an entity.” See supra note 4, at 79,116 – 79,117.
[45] “Example 13: Company A is privately held and incorporated in the United States. One member of Company A’s board of directors, Person X, a former chairman of the board of a large PRC corporation, has known ties to the government of the PRC, owns a large minority share of Company A, and has previously made significant investments in other companies founded by Company A’s chief executive officer. Person X also facilitated a large minority investment in Company A by the large PRC corporation where they were previously chairman of the board. Person X’s professional background indicates that they are directly or indirectly supervised, directed, controlled, financed, or subsidized by the PRC government. The combination of Person X’s close ties to Company A’s CEO, Person’s X’s ownership interest and ability to direct investment from large, highly regulated PRC corporate entities, and Person X’s close ties to the PRC government indicate that Company A would be ‘‘subject to the direction’’ of the PRC.” See supra note 4, at 79,106.
[46] “Example 18: A U.S. person who is a connected vehicle manufacturer utilizes foreign VCS and ADS software development teams through various subsidiaries, joint ventures, and contract arrangements, some of which retain servicing obligations, contractual and licensing rights, and other interests in the software they have developed. One of those software development teams is located in the PRC or Russia, and as such, that software team is subject to the jurisdiction of the PRC or Russia. Given the role of PRC or Russian developers in the creation of the VCS or ADS software (covered software), the sale of a completed connected vehicle within the United States that integrates this proprietary covered software, would be a prohibited transaction under the proposed rule, unless it qualifies for a general authorization or specific authorization granted by BIS.” See supra note 4, at 79,107.
[47] “Example 19: A U.S. person who is a connected vehicle manufacturer utilizes VCS and ADS software development teams around the world through various subsidiaries, joint ventures, and contract arrangements. One of those software development teams is comprised of individuals who are PRC or Russian citizens working in a foreign jurisdiction other than the PRC or Russia for a company that is not owned by, controlled by, or subject to the jurisdiction or direction of the PRC or Russia. Although the individuals technically meet the definition of
‘‘person owned by, controlled by, or subject to the direction of a foreign adversary,’’ the sole fact that PRC or Russian citizens work on the connected vehicle manufacturer’s software development would not make the Sale of a completed connected vehicle within the United States that integrates this VCS or ADS software a Prohibited Transaction under the proposed rule.” See supra note 4, at 79,107.
[48] “Example 20: Company A, which is a wholly owned subsidiary of a foreign corporation in which a PRC or Russian entity owns a controlling interest, imports completed connected vehicles that incorporate covered software and VCS hardware, none of which was originally designed, developed, manufactured, or supplied by an entity owned by, controlled by, or subject to the jurisdiction or direction of the PRC or Russia. In such rare circumstance where Company A did not participate in the design or development of the covered software or VCS hardware, Company A would submit (once per Model Year) a Declaration of Conformity for the import of the completed connected vehicles containing covered software and VCS hardware. However, any subsequent sale by Company A of such completed connected vehicle in the United States would be prohibited. For example, Company A subsequently Sells such completed connected vehicles to a dealer in the United States. Because Company A is a person controlled by the PRC or Russia and has direct privileged access to the VCS Hardware and covered software prior to the sale, the knowing sale by Company A of the completed connected vehicle with VCS hardware and covered software would be a prohibited transaction under the proposed rule, and a specific authorization from BIS would be required before engaging in such a transaction.” See supra note 4, at 79,107.
[49] “Example 21: Company A, a wholly owned subsidiary of a PRC or Russia corporation manufactures completed connected vehicles in the United States. The completed connected vehicles that Company A manufactures incorporate covered software and VCS hardware provided by Company B, a company that is not owned by, controlled by, or subject to the jurisdiction or direction of the PRC or Russia. Because Company A is owned by, controlled by, or subject to the jurisdiction or direction of the PRC or Russia, participated in the design and development of the covered software or VCS hardware, and in any event, has direct and privileged access to its completed connected vehicles— including the incorporated covered software and VCS hardware—Company A’s sale of the completed connected vehicles is a prohibited transaction under the proposed rule, and a specific authorization from BIS would be required before engaging in such a transaction.” See supra note 4, at 79,107.
[50] See supra note 4, at 79,119.
[51] Id.
[52] See supra note 4, at 79,120.
